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Recent international surrogacy case addresses immigration issues and challenges in bringing children home

In this blog, family and immigration law specialists Connie Atkinson and Katie Newbury reflect on the recent judgment in a surrogacy case, Re Z (Foreign Surrogacy: Allocation of Work: Guidance on Parental Order Reports), which is likely to impact future surrogacy cases involving immigration issues and cases where children are unable to return to England immediately following their birth. The case also highlights the importance of seeking advice early in cases where parents have a child abroad following an international surrogacy arrangement.

Key issues in the case

The case involved applications by the commissioning parents in respect of their twins, who were born as a result of a surrogacy arrangement in India. The commissioning parents were both British citizens and domiciled in England. The surrogate mother became pregnant with embryos created using the commissioning father's sperm and a donor egg.

The twins were born in India on 5 May 2014 and applications for parental orders, which are required in England and Wales in order to extinguish the surrogate mother's legal parentage and recognise the commissioning parents as the twins' legal parents, were issued on 1 August 2014.

Issues the parents faced

A delay in obtaining the twins' passports meant they were not able to return home to the applicant parents for more than one year. The parental order reporter highlighted her concerns about the impact of this on the twins' ability to form attachments to their parents. The commissioning parents relied on the father's income to support the family and as a result of this and issues with the mother's health, the parents had to return to England shortly after the twins were born. They were initially cared for by nannies until February 2015 when the father returned to India to look after them. The commissioning mother remained in England with their other child.

The court considered whether the parental order reporter needed to see the children with their parents in order to complete the welfare analysis as part of her parental order report. The children's presence in India during most of the proceedings also meant that the parental order reporter was not able to see the children or complete her report until after May 2015.

The court also considered whether section 54(4)(a) of the Human Fertilisation and Embryology Act 2008 (HFEA 2008) had been complied with, given that the children were not in their parents' care at the time of the parental order applications.

The court’s approach

Once the applications for parental orders had been issued, a series of directions hearings took place in the local court and the final hearings had to be adjourned on several occasions as the children's travel documentation was not available. In accordance with the directions made, the parental order reporter prepared her report but was unable to complete her welfare analysis as she had not been able to meet the children or see them with their parents.

The case was transferred to the High Court and a hearing took place before Russell J on 23 April 2015. At that hearing, the court was invited to make parental orders in respect of the children without the parental order reporter completing her report. The result would have been to automatically confer British citizenship on the children and expedite their return home. Russell J was not prepared to make the order in those circumstances but included on the face of the order a request that the Foreign and Commonwealth Office (FCO) and the High Commission in Delhi confirm in writing the reasons why the twins' citizenship and passport applications had not been granted.

A directions hearing was listed for 18 May and a final hearing on 8 July 2015.

On 13 May, the twins were registered as British citizens and were provided shortly afterwards with exit visas and their passports. The twins flew to England on 28 May.

The parental order reporter was then able to complete her report and the final hearing took place on 8 July.

In her judgment, Russell J took the opportunity to give guidance about the practice which should be followed by the Family Court in cases involving international surrogacy arrangements.

Immigration and citizenship issues

As is often the case in international surrogacy scenarios, the children were subject to excessive delays in obtaining their British passports. As they were not entitled to Indian passports, they were unable to leave India and travel to the UK with their parents until they had been issued with British passports. As the surrogate mother was a widow, and the British father was the biological father, the children were British by descent. They therefore should have been entitled to British passports. However, poor decision making and concerns over the documentation provided with the passport applications delayed the passport applications for several months and HM Passport Office indicated they were minded to refuse the applications. This led the children to be registered as British under section 3(1) of the British Nationality Act 1981 and subsequently obtaining British passports.

The court did show a willingness to become involved in the immigration issues in this case to the extent that they attempted to exert pressure to speed up the process and ultimately sought an explanation from the FCO and the High Commissioner of the British High Commission in Delhi for the delay.

Despite these interventions, the court was aware of the importance of not using the parental order, which would confer British nationality, to circumvent immigration law. In considering the balance to be struck, they reaffirmed the relationship between the family courts and immigration authorities as set out in Re A (Care Proceedings: Asylum Seekers) [2003] EWHC 1086 (Fam), [2003] All ER (D) 298 (May). The key factor they noted was that, in this case, the purpose of the parental order application was to enable the applicants to exercise parental authority lawfully and not to confer an immigration benefit of the children. Drawing an analogy to international adoption practice, the court affirmed that the Home Office, HM Passport Office and the FCO should have been notified and given the opportunity to intervene in this case. Such early notification may have resulted in a faster resolution to the passport delays.

Practical implications of this decision

This case highlights the need for specialist family and immigration advice (both in England and in the country where the child is born) in cases where parents have a child abroad following an international surrogacy arrangement.

The approach courts should follow for international surrogacy cases going forward is set out at para [73] of the judgment:

'(i) All proceedings for parental orders will commence in the Family Court where they will remain. They should not be transferred to the High Court.

(ii) All proceedings pursuant to HFEA 2008, s 54 where the child's place of birth was outside of England and Wales should be allocated to be heard by a Judge of the Family Division.

(iii) In London all cases should, if possible, be allocated to Mrs Justice Pauffley, Mrs Justice Theis or Ms Justice Russell.

(iv) Cases which originate on circuit, unless transferred to London, should be allocated to be heard locally by a Judge of the Family Division identified by the Family Division Liaison Judge in consultation with the Judge in Charge of the HFEA list (this is Mrs Justice Theis).

(v) Allocation of the case to either the Cafcass High Court Team or to a local Cafcass or Cafcass Cymru officer to act as parental order reporter is a matter for Cafcass [...].'

Commissioning parents or their solicitors should therefore ask for the case to be allocated to a High Court judge if this has not occurred automatically by the first hearing.

How might the decision affect future cases?

In cases where there are immigration issues and the children are not able to travel immediately, the applicant parents or their solicitors can consider asking the court to intervene in communications with the Home Office.

Although the judge in this case did not allow the making of parental orders in circumstances where the parental order reporter had not seen the children with the applicants, and although the guidance at para [86] of the judgment is 'that the parental order reporter's investigation in any case must include the child being seen with the applicants', the judgment highlighted that the legislation does not say that this is mandatory and in circumstances where 'there are compelling and exceptional reasons based on the child's welfare why such observations cannot take place or where there is sufficient independent evidence pertaining to the child's welfare from an alternative source', a parental order might be permitted in circumstances where the parental order reporter has not seen the children with their parents. It is a matter for the court to consider in the circumstances.

Finally, in respect of HFEA 2008, s 54(4)(a), the judge 'with the previous case law in mind', found that this part of the provisions of s 54 had been met notwithstanding that the twins were not in the physical care of their parents when the applications for parental orders were made in August 2014. The court's approach may assist commissioning parents in similar situations in the future.